FILLED DAIRY PRODUCTS

DAIRIES AND FOODS ‑- AGRICULTURE ‑- FILLED DAIRY PRODUCTS

Filled dairy products may be manufactured in the state of Washington solely for export to out-of-state destinations under RCW 15.38.020.

                                                                   - - - - - - - - - - - - -

                                                                    July 30, 1975

Honorable Robert Curtis
State Representative, 12th Dist.
P.O. Box 0188
East Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1975 No. 66

Dear Representative Curtis:

            By recent letter you have requested an opinion of this office on a question which we paraphrase as follows:

            May filled dairy products be manufactured in the state of Washington solely for export to out-of-state destinations?

            We answer your question in the affirmative as explained in the following analysis.

                                                                     ANALYSIS

            The filled dairy products act, chapter 15.38 RCW,1/ prohibits the manufacture, distribution and sale in intrastate commerce within the state of Washington of products which are an imitation or semblance of dairy products.  See, RCW 15.38.020, subsection (1) of which provides:

            "It shall be unlawfulin intrastate commerce for any person to manufacture, sell, exchange, purvey, transport or possess any filled dairy product or to offer or expose for sale or exchange or to be purveyed any such product;"  (Emphasis supplied)

            The term "intrastate commerce" is specifically defined in RCW 15.38.010(3) as:

            ". . . any and all commerce within the state of Washington subject to the jurisdiction thereof; and includes the operation of any business or service establishment."

             [[Orig. Op. Page 2]]   Likewise, subsection (2) of this statute defines "filled dairy products," with certain exceptions, to mean:

            ". . . any milk, cream, or skimmed milk, or any combination thereof, whether or not condensed, evaporated, concentrated, frozen, powdered, dried, or desiccated, or any food product made or manufactured therefrom, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat so that the resulting product is in imitation or semblance of any dairy product, including but not limited to, milk, cream, sour cream, skimmed milk, ice cream, whipped cream, flavored milk or skim-milk, dried or powdered milk, cheese, cream cheese, cottage cheese, creamed cottage cheese, ice cream mix, sherbet, condensed milk, evaporated milk, or concentrated milk: . . ."

            Your inquiry is prompted by the desire of a company to manufacture an artificial ice cream as a filled dairy product in the state of Washington and then to ship all of that product to out-of-state areas where such filled dairy products can legally be sold.  The manufacturer of this product will require the use of natural milk and thus, if manufactured in the state of Washington, the activity will expand the market available for milk producers in our state who supply the manufacturer.  You have also indicated that the manufacturer will take such steps as are necessary to insure that its product is sold for consumption only outside of the state of Washington.

            Technically, any manufacturing that occurs within the state of Washington is subject to the state's jurisdiction; for example, for taxing purposes.  Until the item is in fact manufactured, it does not enter the stream of interstate or intrastate commerce.  Thus, RCW 15.38.020(1) technically can be read as prohibiting any and all manufacture of filled dairy products within the state of Washington ‑ even those products which are subsequently distributed in interstate commerce.  Our court has, however, indicated on numerous occasions that the underlying purpose inherent in the function of construing statutory enactments is to effectuate the object or intent of the legislature.  Murphy v. Campbell Inv. Co., 79 Wn.2d 417, 486 P.2d 1080 (1971); State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970);State ex rel. Tarver v. Smith, 78 Wn.2d 152, 470 P.2d 172 (1970);Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965); andAlderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).

            Moreover, in construing a legislative enactment, substantial weight must be given to the statement of purpose included in the  [[Orig. Op. Page 3]] legislation.  See,Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972).  Here, the declared purpose of the Washington filled dairy products act is expressed in RCW 15.38.001 (codifying § 1 of the act) as follows:

            "Filled dairy products resemble genuine dairy products so closely that they lend themselves readily to substitution for and confusion with such dairy products and in many cases cannotbe distinguished from genuine dairy products by the ordinary consumer.  The manufacture, sale, exchange, purveying, transportation, possession, or offering for sale or exchange or purveyance of filled dairy products creates a condition conducive to substitution, confusion, deception, and fraud, and one which if permitted to exist tends to interfere with the orderly and fair marketing of foods essential to the well-being of the people of this state.  It is hereby declared to be the purpose of this chapter to correct and eliminate the condition above referred to;to protect the public from confusion, fraud and deception; to prohibit practices inimical to the general welfare; and to promote the orderly and fair marketing of essential foods."  (Emphasis supplied)

            In addition to this legislative declaration of purpose, we also should consider two recent judicial treatments of the act by the Washington supreme court.  First, in Reesman v. State, 74 Wn.2d 646, 445 P.2d 1004 (1968), its constitutionality was unsuccessfully challenged by a manufacturer and distributor of filled dairy products.  In upholding the act the court disposed of several cases from other jurisdictions voiding similar laws by noting that those (unconstitutional) statutes ". . . contain a sweeping prohibition of virtually all dealings in such products in their effort to reach the evil of consumer deception and fraud."  Supra, at 653.  In contrast, our court said that the Washington legislation:

            ". . . put its finger squarely upon the evil which the enactment was designed to guard against, i.e., the manufacture, distribution and sale of a substitute dairy product which, by its resemblance to the natural product, is conducive to consumer confusion and deception. . . ."  Supra, at 651.  (Emphasis supplied)

            And further, at page 653, the court went on to say, with reference to the Washington act:

             [[Orig. Op. Page 4]] ". . . in the realm of such regulations, a measure which aims in a limited way at interdicting the evil at its source is no more onerous on distributors such as respondents than would be the burden on retailers of a regulation, as inferentially suggested by respondents, which would require the retailers or other dispensers of respondents' product to separately shelve the product or otherwise clearly advise consumers that the product was not a natural dairy product.  The question of the desirability and the effectiveness of one method of control over the other is fairly debatable, and gives rise to a legislative choice rather than a judicial one."

            More recently, inState v. Thick & Frosty, 82 Wn.2d 722, 514 P.2d 140 (1973), a majority of the court again upheld the constitutionality of the Washington act and of the

            ". . . soundness of the filled dairy products act, as a measure for the protection of the consuming public from confusion, deception, and fraud, . . ."  Supra, at 727.

            However in this case four judges dissented from the majority'sapplication of the act to the facts of the case on the ground that, in their judgment, there was no showing that consumers in our state were in fact deceived by the marketing and labeling of the product "Thick & Frosty" so as to believe that it constituted a dairy product.

            The critical point to be derived from both of these cases is, in order to be constitutionally justified, the Washington act has to be read and applied strictly as a protection for consumers against fraud and deception.  The act is not by its terms ‑ nor has the court construed it as being ‑ an act designed to protect the reputation of natural dairy products, such as was the purpose of the apple grade restrictions which were challenged in Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960).

            We would therefore conclude that the act2/ does not prohibit the manufacture of a filled dairy product within the state of Washington when the entire product being so manufactured is in fact exported from the state of Washington and does not enter the consumer market of this state.  If a product so manufactured does enter the retail outlets of this state for distribution to consumers, the injunctive provisions thereof will be available  [[Orig. Op. Page 5]] for proceeding directly against the manufacturer.3/   Moreover, it is further our opinion that when the product is manufactured within the state, the manufacturer will have the burden of showing that the entire product is earmarked for interstate commerce.  See,Eardley Fisheries Co. v. Seattle, 50 Wn.2d 566, 314 P.2d 393 (1957).

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General